Jury to tell whether radiology tech was put on PIP, fired for age bias complaints

By Dave Strausfeld, J.D.

A radiology technologist may proceed to trial on his claims that he suffered retaliation for complaining of age discrimination, held a federal district court in New Jersey. Because his most recent performance evaluations rated him “exceeds expectations,” a reasonable jury could find that he was placed on a performance improvement plan for no other reason than that he had complained about age bias roughly two months earlier; he was subsequently fired for failing to improve his performance. In addition to his retaliation claims, the employee moves forward with his discrimination claims, brought likewise under the ADEA and the New Jersey Law Against Discrimination (Ciecka v. The Cooper Health System, February 14, 2017, Simandle, J.).

The crux of the technologist’s claims was that the circumstances of his employment changed drastically after June 2014, when he sent a letter to the human resources department stating that a supervisor had “made references about [his] age.” Roughly two months later, he was placed on a PIP for allegedly demonstrating a lack of competence in using certain operating room equipment. Then a few months after that, in December, the 52-year-old was fired for failing to improve under the PIP.

Jury could “read between the lines.” Denying summary judgment on the technologist’s retaliation claims, the court was satisfied that he established a prima facie case and also raised an inference of pretext. A jury could choose to “read between the lines” and find that he was placed on a PIP and then fired as a form of payback for his HR complaint that a supervisor had made references to his age.

Although the healthcare organization presented evidence that a number of physicians and lead technologists deemed his skills to be deficient, including his skill in working with two important pieces of equipment (the “O-arm” and “C-arm”), a jury could disbelieve this evidence and focus on the fact that only a “few weeks” passed between his age bias complaint and his placement on a PIP.

Performance evaluations. Additionally, there were “inconsistencies” in the record regarding the technologist’s O-arm and C-arm skills. Most importantly, in both 2013 and 2014 his performance was rated overall as “exceeds expectations.” In fact, he was given scores of 4 out of 5 for his competency in operating room technology. Yet he was placed on a PIP in 2014—and none of the issues raised in the PIP was ever mentioned in these previous performance evaluations.

Comparator evidence. Further, the technologist offered some proof that he was treated differently from other staff radiology technologists. “[A]pparently many technologists,” the court commented, “had the same deficiencies with the operating room equipment as he did, and yet no others were put on a PIP or otherwise disciplined.”

If a jury viewed the evidence in the technologist’s favor, it could conclude that the reason things went sour for him at work was not because he had subpar skills but simply because he had complained about age bias. A jury could also find that he was “set up to fail” on the PIP to justify his termination, as he claimed.

Discrimination claim. On much the same evidence that supported his retaliation claims, the technologist survived summary judgment on his age discrimination claims. To prove discrimination, the court noted, he “will have to contend at trial with the fact that the primary decisionmakers in his case were also all over 40.” Nonetheless, a reasonable jury could conceivably find on the evidence here that he was subjected to discrimination as well as retaliation, the court concluded.